Expressions Hair Design v. Schneiderman

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the Retail Litigation Center, et al., in support of the petitioners in this case.

Holding: (1) The Supreme Court's review is limited to whether New York General Business Law Section 518 is unconstitutional as applied to the particular pricing scheme that, before this court, petitioners, five New York businesses and their owners, have argued they seek to employ: a single-sticker regime, in which merchants post a cash price and an additional credit card surcharge; (2) Section 518 prohibits the pricing regime petitioners wish to employ; (3) In regulating the communication of prices rather than prices themselves, Section 518 regulates speech. On remand the court of appeals should determine whether Section 518 survives First Amendment scrutiny as a speech regulation; and (4) Section 518 is not vague as applied to petitioners.

Judgment: Vacated and remanded, 8-0, in an opinion by Chief Justice Roberts on March 29, 2017. Justice Breyer filed an opinion concurring in the judgment. Justice Sotomayor filed an opinion concurring in the judgment, in which Justice Alito joined.

Judgment VACATED and case REMANDED. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Thomas, Ginsburg, and Kagan, JJ., joined. Breyer, J., filed an opinion concurring in the judgment. Sotomayor, J., filed an opinion concurring in the judgment, in which Alito, J., joined.